The WHD will continue to enforce the statute after its expiration, given its two-year statute of limitations (three years for alleged willful violations).
On December 31, the Wage and Hour Division (WHD) updated its guidance on protections and relief offered by the Families First Coronavirus Response Act (FFCRA). The FFCRA’s paid sick leave and expanded family and medical leave requirements expired on December 31, 2020, but employers may voluntarily provide leave to employees until March 31, 2021. However, employers have no legal obligation to provide FFCRA leave beyond December 31, 2020.
New FAQs. The added guidance—two frequently asked questions and answers—address whether workers who did not use their FFCRA leave entitlement in 2020 may use such leave after December 31, 2020, and how the WHD will maintain its enforcement authority over employers’ leave responsibilities while the FFCRA’s paid leave requirements were in effect, even after these leave entitlements have expired.
Unused FFCRA leave. According to new FAQ 104, where an employee was eligible for leave under the FFCRA in 2020 but did not use any leave, the employer is not required to provide paid sick or expanded family and medical leave after December 31, 2020, but it may voluntarily decide to provide such leave. The obligation to provide FFCRA leave applies from the FFCRA’s effective date of April 1, 2020, through December 31, 2020. Any change to extend the requirement to provide leave under the FFCRA would require Congressional action.
Voluntary leave. Notably, the Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021. However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020 (IRS information is available here).
Enforcement after FFCRA expiration. FAQ 105 explains that where an employee has used, with employer-approval, six weeks of FFCRA leave between April 1, 2020, and December 31, 2020, because the childcare provider was unavailable due to COVID-19, but the employer had not yet paid for the last two weeks of FFCRA leave, the employer is still required to pay for the leave, even though the FFCRA has expired.
The WHD will enforce the FFCRA for leave taken or requested during the effective period of April 1, 2020, through December 31, 2020, for complaints made within the statute of limitations. The statute of limitations for both the paid sick leave and expanded family and medical leave provisions of the FFCRA is two years from the date of the alleged violation—or three years in cases involving alleged willful violations. There may also be a private right of action for alleged violations.
“The Wage and Hour Division is attuned to the critical need for American workers and employers to understand this relief program as they deal with the effects of this crisis on the workplace,” WHD Administrator Cheryl Stanton said in a press release. “The guidance we issued today provides clarity around some of the novel issues that the FFCRA’s expiration raises. We remain committed to providing as many tools and as much information as possible to all parties.”
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